양심적 병역거부의 ‘정당한 사유’ 해석론 비판 : ‘길’로서의 법 vs. ‘문’으로서의 법

This paper aims to critically diagnosis the Supreme Court’s interpretation of “justifiable grounds” for conscientious objection. Recently the normative circumstances of conscientious objection have dramatically changed since the Constitutional Court declared Categories of Military Service Provision nonconforming to the Constitution and ordered the legislature to implement alternative service for genuine conscientious objectors. The Supreme Court held a full-bench public hearing on the cases of three conscientious objectors in order to debate over whether to interpret conscientious objectors’ decisions as “justifiable grounds” even before implementing the alternative service. First, the author examined whether Korean society has been mature enough to introduce the alternative service since the Supreme Court Full Bench Decision 2004Do2965 delivered on July 14, 2004. Second, critical analysis of major judicial decisions on the conscientious objection revealed that the form of judicial balancing has developed to integrate abstract normative judgment and concrete empirical prediction since the Decision 2004Do2965. Third, through cognitive analysis of the public hearing, the author unearthed that “Conscientious Objection-as-Journey” and “Law-as-Path” metaphors were the implicit structure of the opinion that conscientious objectors’ realization of the conscientious decision should be pending before implementing the alternative service. It was pointed out that these conceptual metaphors have the problem that the suffering experienced by conscientious objectors is not properly reflected in the form of judicial balancing. Thus “Conscientious Objection-as-Decision” and “Law-as-Gate” were proposed as alternative conceptual metaphors.